Jeewan Mehrotra vs Kalawanti Kotwani
1993 Latest Caselaw 376 Del

JUDGMENT

Usha Mehra, J.

(1) The short point involved is whether the admission made by the respondent in para 14 of the petition can be withdrawn.

(2) The point involved is very short and does not require any detailed elaboration or discussion. The facts giving rise to the present petition are that the respondent, landlord/ owner filed a petition for eviction under Section 14(l)(e) of the Delhi Rent Control Act (hereinafter called the Act), against the present petitioner/tenant, on the ground of bonafide requirement.

(3) In the leave to defend application, the tenant took the plea that the premises were let out for residential-cum-commercial purposes. Hence the petition for eviction on account of bonafide requirement was not maintainable. The leave was granted. The respondent thereafter, filed an application seeking amendment of his eviction petition. By this amend- ment the landlord/owner wanted to withdraw the fact of "No agreement" and instead wanted to incorporate the fact in paragraph 14 that there was a written agreement executed between the parties. The blanks left in the agreement were filled up by the tenant in his own handwriting. Moreover the said agreement bears his signature. The trial court allowed the amendments. It is against this order allowing the amendments that the present Revision has been filed.

(4) Mr. J.K. Seth, counsel appearing for the tenant/petitioner contended that the respondent having admitted in no uncertain words that there was "no agreement executed" cannot be allowed to set up a new case by the proposed amendment, which if allowed would take away the right already accrued in favor of the petitioner. It would cause great prejudice. Admission of the fact that there was no agreement executed would prove that the premises was not let out for residential purpose only. It was let out for residential-cum-commercial purpose. Respondent by this amendment is trying to rely on a forged and fabricated document, therefore, this amendment had taken away valuable right of the petitioner. To support his contention that admission made cannot be allowed to be withdrawn by way of amendment he placed reliance on the decision of this Court in the cases of Raj Gupta V. Ninnal Nanda reported in 1988 Rajdhani Law Report, page 410, Gwalior Rayon Silk Mfg.(Wvg) Co. Ltd. Vs. Mrs. Chandrika Guttal and others 1989(2),Rent Control Journal 635, Indo American ElectricalsLtd. Vs. M.L Sharma 21 (1982) Delhi Law Times 102, Chetan Lal Jain Vs. ManoharLal Vohra 24(1983) Delhi Law Times 298. He has also placed reliance on the decision of Supreme Court .

(5) On the other hand Mr. Gupta, counsel for the respondent, contended that the case set up by the respondent, landlord/owner was eviction on the ground of bonafide requirement. To seek eviction on the ground of bonafide requirement four essential ingredients to be established (i) the person seeking eviction is the owner; (ii) premises was let out for residential purpose; (iii) no other suitable accommodation available and (iv) needed the premises for his residence. In the eviction petition, the respondent had indicated all the essential ingredients in his para 18(a) of the petition. He had pleaded himself to be the owner of the property, and it was let out for residential purposes. He had no alternative sufficient accommodation available and required the premises bonafide for his own use and for the use of his family members dependent on him. Therefore, by the amendment in para 14 he is not substituting the cause of action already set up, nor setting up a new case. The ground of eviction is not the written agreement but bonafide requirement. Therefore, by amendment of para 14 of the petition, no prejudice would be caused to the petitioner. By this amendment he was simply clarifying certain facts which by oversight or by the reason beyond his control could not be properly mentioned in para 14 of the petition. In support of his contention he has placed reliance on the decision of the Supreme Court in the case of Panchdeo Narain Srivastava Vs. Km. Jyoti Sahay and another , S.P. Sehgal Vs. Smt. Vidya Kaul reported in 1989, Rajdhani Law Reporter 163, Hari Kishan Vs. Prem Narain reported in 1985 Dlt 161.

(6) I have heard the learned counsel for the parties and perused the record. Admittedly in para 14 of the petition the landlord/owner mentioned in no uncertain words that there was "no agreement executed", meaning thereby that there was no written agreement between the parties regarding tenancy. Even after the amendment, the respondent has yet to prove that the written agreement was executed by the petitioner and it bears his signature and writing. The question for consideration is not the existence or non existence of the tenancy agreement. Nor the mentioning or non mentioning of the same would amount to setting up of the cause of action. As already pointed out above the case set up by the respondent was eviction for his bonafide requirement, for which he was to prove that he was the owner, purpose of letting etc, and not whether there existed any written tenancy agreement. The eviction petition was not to succeed or fail on the averment or non averment of the tenancy agreement. The proving of the said document was not issue in the main petition, therefore, the trial court rightly allowed the amendment of para 14 of the petition. By the amendment, the case set up by the respondent has not been altered or changed. Nor by the amendment respondent has been permitted to substitute one cause of action by another distinct cause of action. Hence the judgments cited by the learned counsel for the petitioner are not applicable to the facts of this case. In the case of Raj Gupta (Supra) the tenant had taken a plea in the written statement that he took the premises in his individual capacity as tenant but subsequently by the amendment he wanted to withdraw this admission by incorporating that the premises was not taken by him but was hired by the partnership firm. This amendment was disallowed because it was felt that the tenant was trying to set up a new case. By the proposed amendment he was seeking permission to withdraw the admission. But that is not the case in hand. Similarly in the case of Chetan Lal Jain (Supra) the court was dealing with an amendment by which the parties wanted to substitute a distinct cause of action and wanted to set up altogether a new case. It was disallowed. Again that is not the case here. However, with benefit we can use the observation of J.D. Jain, J. in the case of Chetan. Lal Jain (Supra). These observations are very relevant for the purpose of deciding the issue in question. It was held that:- "THE provision for the amendment of the pleadings, subject to such terms as to costs and giving all parties concerned necessary opportunity to meet exact situations resulting from amendments, are intended for promoting the ends of justice and not for defeating them."

(7) To my mind, the amendment has been rightly allowed in order to meet the end of justice. In this regard I am supported by the decision of the Supreme Court in the case of Panchdeo Narain (Supra) where it has been held that an admission made by a party may be withdrawn or may be explained away. Therefore, it cannot be said that by an amendment admission of fact cannot be withdrawn. The learned trial court while allowing the application was satisfied that in order to effectively adjudicate upon the dispute between the parties amendment of para 14 was necessary. No error of law has been pointed out in the impugned judgment. It is well settled principle of law that the High Court in its revisional jurisdiction cannot interfere with the order of the trial Court unless there is an error in exercise of jurisdiction by the trial Court. So far as the question of genuineness or otherwise of the document in question is concerned, that cannot be gone into at this stage. This will be decided on its own merits, after the evidence is led. By allowing this amendment, no right of the petitioner has been infringed.

(8) For the above reasons, I find no merit in the petition. Dismissed.